United States v. Smith

United States Court of Appeals, Fifth Circuit

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff - Appelleev.TYRONE LARRY SMITH, also known as Marques Stewart, also known as Tyrone Letron Smith, also known as Tyrone Latron Smith, also known as Tyrone L. Smith, also known as Troy Green, also known as Antoine Lavell Franklin, also known as Michael Mummadd, also known as Taz; LACOYA WASHINGTON, Defendants - Appellants

Appeals from the United States District Court for the Western
District of Louisiana

Before
HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

Defendants
Tyrone Smith and Lacoya Washington were convicted of sex
trafficking involving a fourteen-year-old girl. On appeal,
Washington challenges the sufficiency of the evidence against
her, the denial of her motion for severance, and the
reasonableness of her sentence. Finding no error, we AFFIRM
her conviction. Smith challenges the sufficiency of the
evidence against him, the denial of his motion to suppress,
and the denial of his motion to reassert his right to
counsel. We find that the district court erred in denying
Smith's motion for counsel. We REVERSE his convictions.

I.

In the
summer of 2015, Tyrone Smith resided with Lacoya Washington
and her four children at Washington's apartment in
Shreveport, Louisiana. During this time, Smith met B.R., a
fourteen-year-old from Texas, on the dating website Plenty of
Fish. The relationship moved to texting and telephone calls.
B.R. told Smith that she was nineteen. Smith suggested that
B.R. come to Louisiana and live with him, and B.R. agreed.

In June
2015, B.R. took a Greyhound bus to Shreveport. B.R. testified
that Washington picked her up at the bus station and the two
met Smith at the apartment. Shortly after her arrival, Smith
told B.R. "there's someone outside waiting and you
pretty much need to go to the car, have sex with him, get
money, and come inside." B.R. testified that when she
objected, Smith told her that if she refused, she would
"get in trouble for it." She said that after the
incident Smith told her "[t]his is what you're going
to be doing from now on. You better be okay with it."
Smith arranged similar "car dates" three or four
times.

Smith
later instructed B.R. to take photographs on his cell phone,
some of which he sent to Washington. Smith used the
photographs to create an online advertisement for
prostitution on the website Backpage.com. He paid for the ad
with a prepaid gift card bought with Washington's money.
Smith used Washington's email address and his phone
number. B.R. claimed that Smith and Washington collaborated
on the text of the ad. The next day, Smith posted a second ad
using his own email address.

B.R.
testified that when men responded to the ad, Smith or
Washington told her what to charge. B.R. estimated that she
had sex with six men who responded to the ad. She testified
that Washington or Washington's boyfriend drove her to
the motels to meet the men. Washington also paid for the
motel rooms, using money that Smith gave her from customers.
B.R. testified that after a customer left, they would
"keep [the room] for the night" and "drink
[and] do coke." Washington provided the cocaine.

On July
6, Smith and B.R. got into a fight because she had locked him
out of the hotel room. Smith slapped B.R. and told Washington
to leave the room. The fight continued. B.R. said she wanted
to leave and locked herself in the bathroom. Smith entered
the bathroom and hit B.R. approximately three times with a
closed fist. He then got his gun, threatened suicide, and
pointed the gun at B.R. The two eventually "calmed
down" and went to sleep.

On July
7, Shreveport Police Department Officer Miles discovered the
online ads, suspected that B.R. was a minor, and arranged a
sting operation. Miles called the listed number to set up a
meeting. When they arrived at the hotel, SPD officers
detained B.R., who told them that she was a minor, that Smith
was her pimp, and that he had beaten her. Officers searched
the room and found Smith's telephone, the prepaid gift
card, and a loaded gun.

Officers
learned that the room was rented under Washington's name,
located her, and took her into custody where she made a
statement. Washington told the police she believed B.R.
continued to engage in prostitution because she was afraid of
Smith. Officers also located Smith, who provided a statement
where he admitted that he had met B.R. online and that he
knew she was having sex with adult men in Shreveport.

Smith
and Washington were charged with sex trafficking in violation
of 18 U.S.C. § 1591(a)(1) & (b)(1)-(2). Smith was
also charged with interstate prostitution by coercion or
enticement under 18 U.S.C. § 2242. Smith and Washington
were jointly tried in a three-day bench trial. As explained
in more detail below, Smith proceeded pro se. Washington was
represented by counsel.

Both
were convicted as charged. Smith received a 384-month
sentence for Count 1 and a concurrent 240-month sentence for
Count 2. Washington was sentenced to 292 months.

II.

On
appeal, Washington challenges the sufficiency of the evidence
against her, the district court's denial of her motion
for severance, and the reasonableness and constitutionality
of her sentence.

A.

Washington
argues that the government provided insufficient evidence
that she intentionally assisted or participated in
trafficking B.R.[1] She admits that she participated in a
series of "otherwise innocent conduct" including
renting the hotel rooms, driving Smith and B.R. to hotels,
and socializing with them. She further concedes that "at
some point she became aware of what was going on and did
nothing to stop it," but argues that "failure to
protect B.R. is not equivalent to intentionally assisting in
the crime."

"When
a defendant challenges a bench-trial conviction on
sufficiency-of-the-evidence grounds, we focus on 'whether
the finding of guilt is supported by substantial evidence,
i.e., evidence sufficient to justify the trial
judge, as the trier of fact, in concluding beyond a
reasonable doubt that the defendant is
guilty.'"[2] In doing so, "[w]e 'should not
weigh evidence, nor should [we] determine the credibility of
witnesses.'"[3] Instead, "we must 'view all
evidence in the light most favorable to the government and
defer to all reasonable inferences by the trial
court.'"[4]

The
record is replete with evidence of Washington's
involvement. At trial, the government presented evidence that
Washington permitted Smith to use her money and email address
to post an online prostitution advertisement. Washington
allegedly approved the ad's text and some of the
photographs. According to B.R., Washington told her how much
to charge customers, drove her to meet clients, and obtained
the hotel rooms. Washington denied many of these claims at
trial; however, the trial court made clear that it found
Washington's innocent explanations
"noncredible," and there is ample evidence
supporting her knowing involvement.

B.

Washington
also contends that the district court erred in trying her
alongside Smith. We review the denial of a motion to sever
for abuse of discretion.[5] "The threshold for finding such
discretion to have been abused . . . is especially high when
the trial is to be to the court rather than a
jury."[6] "[T]he defendant bears the burden of
showing specific and compelling prejudice that resulted in an
unfair trial, and such prejudice must be of a type against
which the trial court was unable to afford
protection.'"[7] Washington "is entitled to reversal .
. . only if [s]he identifies specific events during trial and
demonstrates that these events caused [her] substantial
prejudice."[8]

Before
trial, Washington filed a motion for severance, arguing that
her involvement in the crime was "minimal" and
expressing concern that she "risk[ed] being punished for
the alleged acts of Mr. Smith." The trial court
originally granted this motion, and reconsidered its ruling
after the parties later agreed to a bench trial. Upon
reconsideration, the district court found that severance was
"no longer warranted."[9]

Washington
now argues that she was unfairly prejudiced by being tried
alongside Smith because "[t]hroughout the whole
proceeding, [he] displayed disruptive and erratic
behavior" and "[t]he acrimonious environment he
created made it impossible for [Washington] to get a fair
trial." We find no abuse of discretion here. Washington
does not identify "specific events" that caused
"substantial prejudice."[10] Instead, she alleges only
general "disruptive" and "erratic"
behavior. The mere fact that a co-defendant proceeded pro se
does not, on its own, create a "serious risk that a
joint trial would compromise a specific trial right of one of
the defendants, or prevent the [factfinder] from making a
reliable judgment about guilt or
innocence."[11] This is particularly true where, as
here, the case was tried to a judge, creating an
"especially high" threshold for abuse of
discretion.

C.

Finally,
Washington challenges her sentence as procedurally,
substantively, and constitutionally unsound. First, she
contends that the court committed procedural error when it
applied two-level enhancements for "undue
influence" and "use of a computer." Next, she
claims her sentence is substantively unreasonable. Finally,
she argues that her sentence is cruel and unusual punishment
violative of the Eighth Amendment.

Washington's
PSR assigned her a base offense level of 34 with four
two-level enhancements, resulting in a total offense level of
42. With a criminal history level I, this resulted in a
Guidelines range of 360 months to life. At sentencing,
Washington objected to three of the enhancements. The court
granted Washington's objection to an obstruction of
justice enhancement, but it applied two-level enhancements
for undue influence and use of a computer service. These
adjustments lowered Washington's offense level to 40 and
her Guidelines range to 292 to 365 months. The court then
sentenced Washington to 292 months.

"This
court reviews a sentencing decision for reasonableness using
a two-step process. First, the court determines whether the
district court committed any significant procedural error.
Under the first step, this court reviews the district
court's interpretation or application of the sentencing
guidelines de novo, and its factual findings for
clear error. If there is no procedural error or the error is
harmless, this court then reviews the substantive
reasonableness of the sentence imposed for abuse of
discretion."[12]

1.

The
Sentencing Guidelines impose a two-level enhancement when a
participant in the criminal activity "unduly influenced
a minor to engage in prohibited sexual
conduct."[13] This enhancement applies where "a
participant's influence over the minor compromised the
voluntariness of the minor's behavior," and there is
a rebuttable presumption that such influence occurs when the
participant is at least ten years older than the minor
victim.[14] To apply a sentencing enhancement, the
court must find facts supporting the enhancement by a
preponderance of the evidence.[15]

Washington
argues that the evidence failed to prove she unduly
influenced B.R. to engage in prostitution. She concedes that
Smith did so, but claims she was "not a part of that
plan." The district court did not err in applying this
enhancement. First, as the court noted, the rebuttable
presumption applied due to Washington's age, and she did
not offer any evidence to rebut that presumption. Second, the
record contains evidence to support the district court's
findings that Washington was "actively involved in this
entire matter, beginning almost immediately upon [B.R.]'s
arrival to Shreveport," and that she exercised undue
influence over B.R.

2.

The
Guidelines authorize a two-level enhancement when the offense
involves "the use of a computer or an interactive
computer service to . . . entice, encourage, offer, or
solicit a person to engage in prohibited sexual conduct with
the minor."[16]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Washington
argues that this enhancement should not apply because she
personally "had no involvement with a computer or
computer service." However, the computer use enhancement
can apply even where the defendant was not the one directly
soliciting customers.[17] Moreover, the district court found
that Washington was involved in a "jointly undertaken
criminal activity," a finding which is supported by the
record. Because of that, Washington is responsible for all
reasonably foreseeable "acts and omissions of
others" within the scope of the criminal activity taken
in furtherance of the criminal activity.[18] As the
district court noted at sentencing, the record supports the
conclusion that Smith operated a Backpage.com account to
entice people to engage in sexual conduct with ...

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